Consent is a person’s agreement to sexual activity, expressed in a voluntary manner. If a person refuses to have sexual relations with another person but she is forced to participate anyway, there has not been any consent on her part.

Consent is only valid if it is clear and given by the person who is participating in the sexual activity. Obviously, there is no consent if the person expresses, using words, actions or through her general attitude, her refusal to participate in a sexual activity. However, it is not necessary for a person to physically resist a sexual activity to conclude that she has not consented. “Tacit” consent, or apparent consent, is not valid consent under the law. So the proverb “Silence implies consent” does not apply to consent in sexual matters.

Sometimes, someone’s apparent consent can be considered invalid under the law. This would be the case if a person’s young age, mental state of physical state leaves him incapable of consenting. This would also be the case if the apparent consent was given due to the victim’s fear or following threats, violence, fraud or the exercise of authority by the aggressor.

The law does not require that consent to sexual activity be expressed in a particular way. So it is not mandatory that consent be given either in a written or verbal form. It is enough that a person manifests his agreement through his words or behaviour. For example, Laura has consented to kiss Mylène if, following Mylène’s verbal invitation, Laura goes up to her and kisses her.

That being said, the consent must be expressed before the sexual activity begins, whether it’s verbal or non-verbal.

In general, the age of sexual consent is 16 years. The consent to a sexual activity of a person under the age of 16 is invalid and is not taken into account by the law.

There is an exception to this rule. Adolescents of different ages can lawfully engage in consensual sexual activity with each other, without being afraid that the older partner would be accused of committing an offence, as long as the following conditions are met:

For sexual activity in which the younger partner is 12 or 13 years old:

• There is less than a two-year age gap between the partners;
  
• The older partner is not in a position of trust or authority toward the younger one;
  
• The relationship is not one of dependency or exploitation of the younger partner.

For sexual activity in which the younger partner is 14 or 15 years old:

• There is less than a five-year age gap between the partners;
  
• The older partner is not in a position of trust or authority toward the younger one;
  
• The relationship is not one of dependency or exploitation of the younger partner.
  OR
  
• The partners are married.

An adolescent cannot validly consent to sexual activity when the older partner is in a position of trust or authority toward the younger one, or when the relationship is one of dependency or exploitation of the younger partner. In such situations, the younger partner must be at least 18 years old.

To learn more, read our Infosheet entitled Offences of a sexual nature against children.

Yes. Consent to sexual activity can be very broad and include many acts, or it can cover just certain specific acts and therefore exclude any acts that go beyond what the person has consented to.

For example, a person who consents to a kiss is not automatically consenting to having her genitals touched. Before initiating a different type of sexual activity, a person therefore has to make sure that his partner is okay with going farther.

It can happen that a person consents to a sexual activity but changes his mind once it has started. If a person decides that he does not want to continue with the sexual activity, he can take back his consent to the activity.

At that point, the person’s partner has to immediately stop the sexual activity in question. If the partner continues despite the person’s change in opinion, he is committing a sexual assault.

In all cases, it is always up to the person who is initiating a sexual activity to make sure that the other person consent. So before a person undertakes a sexual act with another person, the law requires that he take all reasonable steps to make sure that the other person agrees to the activity.

The law does not define what reasonable steps are. It is a question of context. However, one thing is certain: verbally asking someone whether she agrees to participate in a sexual activity is in most cases a reasonable step to ensure consent. Anyone who skips this step is taking the risk that the other person does not consent and that the act will be one of sexual assault.

For example, Natalia is taking a risk if she initiates a sexual activity with her brother-in-law Igor, without first asking his permission, even if she is convinced that Igor is secretly in love with her.

A person can seem to be expressing her consent to a sexual activity, when in reality she does not want to participate. In certain specific situations, the law states that the person’s apparent consent is not valid because it does not reflect her real intention.

So there is no real consent given by a person participating in sexual activity in the following cases:

• The consent was given due to fear. This would the case, for example, if a person agrees to participate in sexual activity because she is scared of facing some sort of violence if she refuses.
  
• The consent was given following the use of force, threats or fraud. This would be the case if a person agrees to participate in sexual activity because she was threatened or because someone forced her to accept by using violence.
  
• The consent was given following the exercise of authority. This would be the case if, for example, a person agrees to participate in sexual activity with her employer because he is threatening to fire her if she refuses.
  
• The consent was given by a person whose state does not allow him to truly consent to an activity. This would be the case if, for example, a person is too drunk or high (in particular, because of a rape drug) to consciously agree to participate in sexual activity. This would also be the case if the person suffers from a disability that renders her incapable of consenting.
  
• The consent is given by someone other than the person concerned by the sexual activity, for example, by her spouse.

This depends on the type of lie. In order for consent to sexual activity to be valid, the person giving the consent must be aware of the sexual nature of the activity and the health risks attached to the sexual activity. So according to the law, consent is not valid if it is given following a lie about the sexual nature of the activity or the risks attached to the sexual activity.

For example, Paula’s gynecologist takes advantage of a check-up to touch her in a sexual manner. This is an offence even if Paula has consented to the doctor touching her genitals. This is because Paula consented to the doctor touching her genitals for a medical purpose, not a sexual one. If the gynecologist lies about the medical nature of his acts, or if he strays away from the medical purpose, his patient’s consent is no longer valid.

In addition, the person giving her consent has to be informed of any significant health risks attached to the sexual activity. If Johnny has AIDS, he has to inform his partners before having sexual relations with them so that they can decide whether they accept the risk of transmission. If Johnny has sexual relations with someone without warning the person, and she would have refused to participate if she had known the truth, Johnny is committing sexual assault.

However, not all lies will cancel out consent given to a sexual activity. For example, if Ziggy agrees to sleep with Clara because she told him that she is rich and single, Ziggy’s consent to the sexual activity is still valid even if he later finds out that Clara is poor and married.

Yes. A person charged with sexual assault can argue before a court that he really believed that the person making the complaint had consented. This is a defence called “honest but mistaken belief in consent”. When he raises this defence, the accused has to prove that he was in good faith and that he truly and sincerely thought that his partner consented to the sexual activity.

That being said, this defence won’t work unless the accused proves that he took reasonable steps to make sure that the person agreed to have sexual relations with him. An accused cannot claim that the person consented if the accused turned a blind eye to whether or not there was really consent.

Furthermore, an accused cannot defend himself by saying he was too drunk or high to realize that the victim was refusing to have sexual contact with him.